In R. v. D.M., 2022 BCCA 120, April 5, 2022, the accused was charged with the offence of sexual exploitation, contrary to section 153(1)(a) of the Criminal Code, in relation to his child (LM). The evidence presented at the trial established that the accused made “lewd jokes and inappropriate comments” to the complainant.  In convicting the accused, the trial judge described this evidence as creating a “sexualized environment” and considered it in concluding that the touching that occurred was for a “sexual purpose”.

The accused appealed from conviction, arguing in part, that the trial judge erred in using this evidence as a basis for concluding that the touching was for a sexual purpose.

The appeal was dismissed. The British Columbia Court of Appeal indicated that “[w]hether an accused touches a complainant for a sexual purpose can be established by direct evidence, by circumstantial evidence or from the nature of the touching itself…One aspect of such direct or circumstantial evidence can be the words used by an accused either when the touching occurs or more broadly in the general circumstances that surround the conduct in issue” (at paragraph 34).

The Court of Appeal concluded that the accused’s “sexualized comments to L.M. were an aspect of the context and circumstances that surrounded the conduct the judge examined and could properly be considered by him to determine whether that conduct was for a sexual purpose” (at paragraph 37).